Florida related & miscellaneous statutes

A deed restriction, covenant, declaration or similar binding agreement may not prohibit, or have the effect of prohibiting, solar collectors, clotheslines or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels the restriction covers. An owner may not be denied permission by any entity given power in the governing documents to approve, forbid, control or direct alteration of property (§ 163.04(2)).

Two boundaries on that protection. The prohibition reaches devices installed on buildings erected on the lots or parcels — a ground-mounted array in the yard is outside it — and the no-denial-of-permission rule is written “with respect to residential dwellings and within the boundaries of a condominium unit,” so it does not reach nonresidential buildings.

The association keeps one narrow power: it may determine where on the roof collectors go, provided the location is within an orientation to the south, or within 45° east or west of due south, and provided that determination does not impair the effective operation of the collectors.

Two limits worth knowing. In litigation under this section the prevailing party is entitled to costs and reasonable attorney’s fees (§ 163.04(3)) — which cuts both ways. And the section does not apply to patio railings in condominiums, cooperatives or apartments (§ 163.04(4)).

Florida declares transfer fee covenants contrary to public policy. A transfer fee covenant recorded on or after July 1, 2008 does not run with the title and is not binding or enforceable against any subsequent owner, purchaser or mortgagee, and any lien purporting to secure such a fee is void (§ 689.28(3)). The statute adds a careful caveat: this does not mean covenants recorded before that date are presumed valid.

The definition is where community associations sit. A long list of charges are not transfer fees for this purpose, and item 7 is the relevant one: any fee, charge, assessment, fine or other amount payable to a homeowners’, condominium, cooperative, mobile home or property owners’ association under a declaration, covenant or applicable law — expressly including estoppel letter or certificate charges. Item 8 also carves out amounts payable under a declaration encumbering four or more parcels in a community as defined in § 720.301 — real property subject to a recorded declaration of covenants — payable to a nonprofit or charitable organisation supporting cultural, educational, charitable, recreational, environmental or conservation activities benefiting that community.

So an ordinary association assessment, fine or estoppel fee is untouched by § 689.28. A separate fee payable to a developer or third party on every future sale is the target.

Florida’s Marketable Record Title Act (Chapter 712) exists to clear old clouds from title. A person vested with an estate in land of record for 30 years or more has a marketable record title free of all claims except the exceptions listed in § 712.03 (§ 712.02). For a community, the consequence can be the extinguishment of a recorded declaration of covenants — but it is not automatic, and it is widely misunderstood.

The 30 years does not run from the date the declaration was recorded. It runs backward from the parcel’s root of title — the last title transaction recorded at least 30 years before marketability is tested (§ 712.01(6)) — so MRTA operates parcel by parcel, and every new deed eventually becomes a new root. Section 712.03 then preserves a great deal: use restrictions disclosed in the muniments of title from the root of title forward (§ 712.03(1)), anything arising out of a title transaction recorded after the root of title (§ 712.03(4)), and any covenant preserved by a notice filed under § 712.05 (§ 712.03(2)). In practice a declaration referenced in the deeds in a parcel’s chain of title is not extinguished. The risk is real but it can strike some parcels in a community and not others.

Two remedies follow, and they run in opposite directions in time.

Preservation, before the covenants lapse. Section 720.3032 lets a property owners’ association that wants to preserve covenants “from potential termination after 30 years by operation of chapter 712” record a notice of association information in each county where the community lies, specifying the association’s legal name, mailing address and other listed particulars. Section 712.05(2) actually gives three routes, any one of which preserves: a full written notice under § 712.06; a summary notice in the form required by § 720.3032(2); or an amendment to the covenant indexed under the association’s legal name and referencing the covenant’s recording information. Whichever is used, a copy of a § 720.3032 notice must go out with the association’s next notice of meeting or member mailing (§ 720.3032(3)).

Revival, after they have lapsed. Chapter 720 Part III (§§ 720.403–720.407) sets out a revitalisation procedure: an organising committee, parcel owner approval, submission to and review by the Department of Commerce, and recording. Section 712.11 then extends that route outward — a property owners’ association not otherwise subject to Chapter 720 may use the §§ 720.403–720.407 procedures to revive covenants that have lapsed under the Marketable Record Title Act. And where there is no association at all, § 712.12(2) lets the parcel owners of the community use §§ 720.403–720.407 directly, subject to the exceptions that section lists.

Many older Florida subdivisions have restrictive covenants written in eras when they lawfully discriminated. Section 712.065 addresses them directly. A “discriminatory restriction” is a provision in a recorded title transaction restricting the ownership, occupancy or use of real property by any natural person on the basis of a characteristic that has been held — or is held after September 4, 2020, by the United States Supreme Court or the Florida Supreme Court — to be protected against discrimination under the Fourteenth Amendment or Article I, section 2 of the Florida Constitution. The section names race, colour, national origin, religion, gender and physical disability.

Such a restriction is not enforceable, and all discriminatory restrictions in any recorded title transaction are declared unlawful, unenforceable, null and void. The provision being void does not disturb the rest of the document. An owner can also get it removed from the paper: on a parcel owner’s request, § 712.065(3) lets the association’s board strike a discriminatory restriction by amendment on a majority vote of the board alone, notwithstanding any other approval requirement in the governing documents — and, so long as the amendment changes nothing else, recording it does not count as a post-root-of-title transaction under § 712.03(4). Separately, enforcing a covenant in a discriminatory way is its own unlawful housing practice under the Florida Fair Housing Act.

Florida regulates these under two different statutes, and conflating them is the most common mistake in this area.

Service animals — § 413.08. An individual with a disability is entitled to full and equal accommodations in all public accommodations, and a public accommodation must modify its policies, practices and procedures to permit use of a service animal, and has the right to be accompanied by the animal in all areas the public is normally permitted to occupy. In housing, such an individual may not be required to pay extra compensation for the animal — but the same paragraph adds two things: the individual is liable for any damage the animal does to the premises or to another person on them, and a housing accommodation may request proof of compliance with vaccination requirements (§ 413.08(6)(b)). Nothing in the section requires a higher degree of accommodation than is provided to a person without a disability (§ 413.08(2)), and a public accommodation may exclude even a service animal that is out of control, not housebroken, or a direct threat to health and safety (§ 413.08(3)(f)). For the public-accommodation subsections (2)–(4) the term “service animal” is limited to a dog or miniature horse; that species limit is not carried into the housing rule in subsection (6). A “housing accommodation” under § 413.08(1)(a) excludes a single-family residence whose occupants rent out not more than one room. The section is explicit that the crime-deterrent effect of an animal’s presence, and the provision of emotional support, well-being, comfort or companionship, do not constitute work or tasks — that is what distinguishes a service animal from an emotional support animal. Knowingly and wilfully misrepresenting oneself as using or training a service animal is a second-degree misdemeanour carrying 30 hours of community service (§ 413.08(9)).

Emotional support animals — § 760.27, on the Fair Housing Act page, is the separate regime: a reasonable-accommodation request, what supporting information a housing provider may and may not ask for, and the rule that an internet ESA registration is not by itself sufficient.

Florida sorts communities by form, not by age, and the boundaries are drawn by exclusion:

• Condominium — Chapter 718. Every condominium created in Florida must be created under it (§ 718.104), and § 718.102 provides that every condominium created and existing in this state is subject to the chapter. No blanket size exemption, though a few sections carve out associations of 10 or fewer units.
• Homeowners’ association — Chapter 720, but only where § 720.301(9) is satisfied: a Florida corporation responsible for the operation of a community or a mobile home subdivision, voting membership of parcel owners or their agents, membership mandatory as a condition of parcel ownership, and authority to impose assessments that may become a lien. A voluntary neighbourhood association is outside it, as are community development districts.
• Cooperative — Chapter 719. Timeshare — Chapter 721. Mobile home park lot tenancies — Chapter 723. Section 720.302(4) keeps Chapter 720 out of any association regulated under Chapter 718, 719 or 721, and out of a nonmandatory association formed under Chapter 723 — except to the extent a provision of Chapter 718, 719 or 721 is expressly incorporated into Chapter 720. A mandatory mobile home association is not excluded: § 720.301(9) defines a homeowners’ association to include one responsible for the operation of “a community or a mobile home subdivision.”
• Commercial and industrial — Chapter 720 does not apply to a community composed of property primarily intended for commercial, industrial or other nonresidential use, nor to the commercial or industrial parcels in a mixed community (§ 720.302(3)).

Whatever the form, the association’s corporate shell usually comes from the Not For Profit Corporation Act — which § 617.1703(1) makes applicable to associations regulated under Chapters 718, 719, 720, 721 and 723, yielding only where the community chapter conflicts or otherwise provides. Two blocks are switched off outright: §§ 617.0605–617.0608 (§ 617.1703(2)) and §§ 617.1601–617.1605 (§ 617.1606).

If a unit is occupied by a tenant and the owner is delinquent in any monetary obligation, the association may make a written demand that the tenant pay subsequent rent directly to the association, and the tenant must continue doing so until the association releases the tenant or the tenant discontinues tenancy in the unit (§ 718.116(11)(a)). The statute prescribes the wording of the notice, delivered by hand or by mail.

The tenant is protected on both sides: liability may not exceed the amount the tenant owes the landlord, and the landlord must credit those payments against rent due (§ 718.116(11)(c)). A court may supersede the whole mechanism by appointing a receiver (§ 718.116(11)(f)).

This is a genuine obligation on the tenant, not a request. The association may issue a § 83.56 notice and sue for eviction under §§ 83.59–83.625 as if it were a landlord under part II of Chapter 83 if the tenant fails to pay after written demand. That is the whole of the grant: the statute adds that the association “is not otherwise considered a landlord under chapter 83 and specifically has no obligations under s. 83.51” (§ 718.116(11)(d)). A tenant who receives such a notice should not simply keep paying the landlord.

Chapter 720 has the same mechanism for homeowners’ associations at § 720.3085(8) — the same rent demand, the same tenant liability cap and landlord credit, and the same limited § 83.56 / §§ 83.59–83.625 eviction power with the same disclaimer of any other landlord obligation.